UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4053
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRYL JAROD MAGWOOD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00361-LMB-2)
Submitted: May 28, 2013 Decided: June 13, 2013
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant. Mary Katherine Barr Daly, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Jarod Magwood was convicted at a bench trial of
conspiracy to distribute twenty-eight grams or more of cocaine
base, 21 U.S.C. §§ 841(a)(1), 846 (2006), and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c) (2006). He was sentenced to 150 months in prison.
Magwood now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
raising three issues but stating that there are no meritorious
issues for appeal. Magwood has filed a pro se supplemental
brief raising additional issues. We affirm.
I
Magwood first challenges the district court’s
credibility determinations, especially the finding that
Detective Flick, a key Government witness, “was an extremely
credible witness.” Credibility determinations are within the
province of the trier of fact and are not reviewable on appeal.
See United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995);
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Accordingly, this claim is without merit.
II
Magwood contends that because he was not given Miranda
warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), prior to
a post-arrest interrogation, testimony about that interview was
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erroneously admitted at trial. In contravention of Magwood’s
claim, Detective Christopher testified that Magwood was
administered the appropriate warnings. The district court found
Christopher’s testimony to be credible and Magwood’s testimony
incredible. As this credibility determination is not subject to
review, we conclude that Magwood received Miranda warnings and
that testimony about his post-arrest interview was properly
admitted.
III
Magwood claims that there was insufficient evidence to
convict him of the firearm offense. We will “sustain a guilty
verdict that, viewing the evidence in the light most favorable
to the prosecution, is supported by substantial evidence.”
United States v. Osborne, 514 F.3d 377, 385 (4th Cir 2008)
(internal quotation marks omitted).
To establish a violation of 18 U.S.C. § 924(c), the
government must prove that the defendant (1) used, carried or
possessed a firearm (2) in furtherance of a drug trafficking
crime or a crime of violence. See 18 U.S.C. § 924(c)(1)(A);
United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009).
Possession may be actual or constructive. United States v.
Booker, 436 F.3d 238, 241 (D.C. Cir. 2006). “Furtherance” under
§ 924(c) means “furthering, advancing, or helping forward.”
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United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)
(internal quotation marks omitted).
We hold that there was sufficient evidence to convict
Magwood of the firearm offense. First, the evidence establishes
that Magwood constructively possessed the firearm that was
seized during a traffic stop: the gun was under the car’s
passenger seat where Magwood was seated the entire evening; he
was seen reaching under the seat when the traffic stop began; he
was seen with the gun earlier that evening; and he had carried
that firearm during previous drug transactions. Further, it is
reasonable to infer that the gun was being used in furtherance
of a drug offense: it was easily accessible; it was loaded; and
it was in close proximity to both drugs and drug profits
discovered in the car and on Magwood’s person.
IV
Magwood claims that trial counsel was ineffective
because he did not move to suppress statements Magwood made
during the post-arrest interview. Magwood also contends that
counsel was ineffective because he “coerced” Magwood to sign a
statement of facts in connection with plea proceedings that were
aborted. Magwood makes several other conclusory allegations of
ineffective assistance.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
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conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir 2008). To allow for adequate
development of the record, a defendant ordinarily should bring
his ineffective assistance claim in a 28 U.S.C.A. § 2255 (West
Supp. 2012) motion. United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010). We discern no errors by counsel
warranting reversal.
V
In the Anders brief, counsel contends that Magwood’s
below-Guidelines sentence is unreasonable but offers no basis
for this claim. Our review of relevant documents, including the
presentence report and sentencing transcript, convinces us that
the sentence is both procedurally and substantively reasonable
and that the district court did not abuse its discretion in
imposing sentence. See United States v. Diosdado-Star, 630 F.3d
359, 365 (4th Cir. 2010); see also Gall v. United States, 552
U.S. 38, 51 (2007).
VI
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm. This court requires that counsel inform
Magwood, in writing, of the right to petition the Supreme Court
of the United States for further review. If Magwood requests
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that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Magwood.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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